Title IX blurs sexual assault jurisdiction

Student self-governance shares prosecution between Sexual Misconduct Board, Honor, UJC

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Prosecuting sexual assault or sexual misconduct through student self-governance at the University has come with its fair share of challenges and quirks. The Honor Committee does not prosecute sexual misconduct, nor does the University Judiciary Committee hold sexual misbehavior in its scope of jurisdiction — in part — for legal reasons.

Adjudicating in lieu of either of these student organizations in cases of sexual assault is the Sexual Misconduct Board, which oversees all cases concerning sexual misconduct among the student body.

Legal restrictions on both the federal and university level prohibit Honor or UJC from prosecuting students for sexual assault, which led to the creation of the Sexual Misconduct Board.

Title IX, a federal statute protecting against sex discrimination in every educational institution that receives federal funding, requires that a lower burden of proof be established for cases involving alleged cases of sexual discrimination. The statute mandates that the burden of proof is held at no more than 70 percent, but at the University, trials require only 51 percent — whereas honor trials have a 99 percent burden of proof.

“Even if the entire student body voted to make sexual assault a violation of the honor code and wanted to make sexual assault an offense that could get someone expelled from the University, it would be impossible,” said Emily Renda, fourth-year College student and chair of the Sexual Assault Leadership Council. “Because the 99 percent burden of proof for an honor trial is so much higher than the 51 percent burden of proof in Title IX, it would literally be a violation of Title IX.”

Like the Honor Committee, UJC also requires a 99 percent burden of proof — proof beyond a reasonable doubt — to find the accused guilty, making them legally unqualified to deal with cases of sexual misconduct. According to UJC official standards, physical violence that includes sexual violence falls under UJC’s jurisdiction, but the Committee can only prosecute the non-sexual aspects of the violation.

“There are often disciplinary issues that can come before two or three of these bodies [UJC, SMB and honor],” said David Ensey, a fourth-year Engineering student and UJC chair. “As far as the University is concerned, it’s important for all three to very strictly define their jurisdiction. For example, if a case came to [UJC] where there was an incident of violence which could be construed sexually, it would just be defined under violence … We would look only at the issue of intentional violence.”

Associate Dean of Students Nicole Eramo, who worked for the Honor Committee for nine years, emphasized the sensitive and distinct nature of cases brought to the Sexual Misconduct Board.

“I think we can all agree that any act of sexual violence is certainly against the spirit of the University’s honor code,” Eramo said in an email. “That said, the adjudication practices of the honor system are not well-suited to these types of cases for several reasons. I think it would be very intimidating for a survivor — and an accused, for that matter — to provide testimony in a setting with eight to 12 peers.”

Sexual Misconduct Board panels consist of a mix of faculty, staff and students trained in the dynamics of sexual misconduct policy. Honor trial juries, on the other hand, can be made up of a random selection of University students.

Though sexual assault is not an honor offense, lying during a sexual misconduct trial is.

“Lying, ever, is an honor offense, period,” said Evan Behrle, fourth-year College student and Honor Committee Chair. “Any act of lying that is determined by a jury to be significant … [which includes] lying during a sexual misconduct trial.”

Behrle said if DNA or other evidence were able to prove with certainty that lying had occurred during a sexual misconduct trial, a student would be brought up on honor charges. But no case such as this has occurred in his term as Committee chair or in recent memory, he said.

“The vast majority of victims don’t go to the hospital, and most rape kits don’t prove rape, they just prove that sex happened,” Renda said. “To be brutally honest, injury can occur during consensual sexual intercourse too. Bottom line, it’s just extremely hard to prove rape.”

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